APPEALS FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
MR. JUSTICE McKENNA delivered the opinion of the court.
The appellants were plaintiffs in the court below, and we shall so designate them.
The plaintiffs, one a minor (No. 112) and the other an adult (No. 113), residing on the White Earth Indian Reservation, brought these actions to determine their rights, respectively, to allotments of land under the provisions of a treaty with the Chippewa Indians proclaimed April 18, 1867, and certain acts of Congress relating to such Indians.
The Government claims that two minor children of Samuel Mooers, also Chippewa Indians, residing on the reservation with their father, have been justly allotted the lands on account of a superior right under the treaty and acts of Congress. The cases were tried together and a decree was entered in each case in accordance with the prayer of the plaintiffs, respectively. The decrees were reversed by the Circuit Court of Appeals and the bills directed to be dismissed. 171 Fed. Rep. 337.
The treaty of March 19, 1867, and certain acts of Congress are elements in the controversy. The treaty provided that as soon as the location of the reservation should have been approximately ascertained it should be surveyed in conformity with the system of Government surveys, and that any Indian of bands parties to be treaty, either male or female, who should have 10 acres of land under cultivation should be entitled to a certificate showing him to be entitled to 40 acres and a like number of
acres for every additional 10 acres cultivated until the full amount of 160 acres should be certified. 16 Stat. 719, 721. This was denominated the "cultivation clause" and many allotments of 160 acres were made under it.
On February 8, 1887 (24 Stat. 388, c. 119), Congress passed an act "to provide for the allotment of lands in severalty to Indians on the various reservations." The first section of the act provided that where any tribe or band of Indians had been or should be located upon any reservation created for their use by treaty, act of Congress or executive order, the President was authorized, if the reservation or any part thereof was advantageous for agricultural and grazing purposes, to cause the reservation to be surveyed or resurveyed, and to allot the lands in severalty as follows: To each head of a family 1/4 of a section, to each single person over 18 years of age, 1/8 of a section, a like fraction to an orphan child under 18 years, to each single person under 18 then living or who might be born prior to the date of the President's order directing allotment, 1/16 of a section. In case of deficiency the allotments were to be made pro rata. It was provided further that where the treaty or act of Congress setting apart the reservation provided for allotments in excess of those designated the allotments should be made in the quantities specified in such treaty or act.
This act was amended February 28, 1891 (26 Stat. 794, c. 383). The allotment to which each Indian was to be entitled was made 1/8 of a section of land. In case of an insufficiency a pro rata allotment as near as might be according to legal subdivision was provided. On January 14, 1889 (25 Stat. 642, c. 24), an act was passed entitled "An act for the relief and civilization of the Chippewa Indians in the State of Minnesota." It is known as the Nelson Act and provided for the appointment by the President of three commissioners to negotiate with the different bands of Chippewas for the cession of all their
lands except so much of the White Earth and Red Lake Reservations as the Commissioner should deem necessary for allotments to be made to the Indians. It also provided for the removal to the White Earth Reservation of all but Red Lake Indians and for allotments to such Indians on White Earth Reservation under the direction of such commissioners.
Section 4 of the act provided for the survey of the lands after the cession and relinquishment of the Indian title and that upon the report of the survey the Secretary of the Interior should appoint a sufficient number of competent examiners to go upon the lands thus surveyed and personally make a careful, complete and thorough examination of the same by 40-acre lots for the purpose of ascertaining upon which lots there was growing or standing pine timber, and the tract upon which such timber was standing or growing should be termed pine lands. The minutes of examination were directed to be entered in books showing with particularity the quantity of timber to be estimated by feet and the quality of timber, which estimates and reports should be filed with the Commissioner of the General Land Office as a part of its permanent records, and that officer should thereupon make up a list of such lands, describing each 40-acre tract separately, and opposite each description place the actual cash value of the same according to his best judgment and information, but such valuation should not be less than $3 per thousand feet, board measure. The list should thereupon be transmitted to the Secretary of the Interior for his approval, modification or rejection, as he may deem proper. It is further provided that "all other lands acquired from the said Indians on said reservation other than pine lands are for the purposes of this act termed agricultural lands." There are provisions for the sale of the pine lands in 40-acre parcels, for the disposal to actual settlers only of the agricultural lands, and that the money
received from both shall be deposited in the Treasury of the United States for ...